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Expert evidence: Solicitors involvement in joint report drafting.


With thanks to Lauren Sutherland for drawing attention to Andrews & Ors v Kronospan Ltd [2022] EWHC 479 (QB) (on BAILII).

The litigation required expert evidence in dust analysis. Orders were made in that regard including an order for a joint statement. The expert for the claimants was Dr Nigel Gibson.

As a result of correspondence between the parties, it became apparent to the Defendant that there had been contact between Dr Gibson and the Claimants’ solicitors during the period of the joint statement discussions between the experts, over a period of about 6 months.Those communications consisted of Dr Gibson providing the Claimants’ solicitors with various iterations of the working draft of the joint statement and comments being made on those drafts by the Claimants’ solicitors which were sent to Dr Gibson. Some were of no real consequence but others commented on or made suggestions on issues of substance.

Dr Gibson had been involved in the proceedings for over 3 years and about 225,000 pounds had been spent on his fees. However the Defendant successfully submitted that, although such an order would be drastic, the only suitable sanction was for the Court to revoke the Claimants’ permission to rely on Dr Gibson as their expert, in circumstances where Dr Gibson had, it was submitted, acted in such a way as to demonstrate that he was not truly independent but rather had been acting as advocate for the Claimants. 

The Court ordered ([34]):

Taking all the above factors into account, and applying the overriding objective, I have concluded that the serious transgressions by the Claimants’ solicitors and Dr Gibson are such that the court has no confidence in Dr Gibson’s ability to act in accordance with his obligations as an expert witness. The basis upon which the Claimants received permission to rely upon Dr Gibson as an expert witness, namely his duties under CPR 35.3, 35PD paras. 2.1 and 2.2, has been undermined. Accordingly I consider that it is appropriate, and not disproportionate, to revoke the Claimants’ permission to rely on his evidence. I consider that it must follow that permission to rely on Dr Gibson as a dust modelling expert is also revoked. The fact that this is group litigation does not dissuade me from that course. It is important that the integrity of the expert discussion process is preserved so that the court, and the public, can have confidence that the court’s decisions are made on the basis of objective expert evidence. This is particularly important where, as here, the expert evidence is of a very technical nature so that the court is heavily reliant on the expert evidence being untainted by subjective considerations.

[BillMaddensWordpress #2064]


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